HBO Sheds Light on Dangers of Guardianship of the Elderly

On June 3, 2018, John Oliver, Lily Tomlin, William Shatner, and others spent some time on Oliver’s show Last Week Tonight addressing a decidedly unfunny topic: Guardianship. If you didn’t see it, you can find it here. The piece has gotten some attention elsewhere in the media, including TIME magazine.

That segment was essentially a humor-laced public-service announcement urging people to take steps to avoid elder abuse. The examples of abuse shown were appalling, but unfortunately not surprising.

Here in Colorado, our probate judges and the bar of probate attorneys have taken steps to curb some of those abuses. In Colorado, our laws make a distinction between guardians, who are appointed to handle your personal care, and conservators, who are appointed to handle your assets. Any Colorado professional serving either as guardian or conservator must undergo a criminal background check and submit a current credit report to the court. And the courts have staff who regularly review the annual accountings a conservator must submit. And the courts must provide you notice of an effort to appoint a guardian or conservator BEFORE such an appointment can be made permanent.

Nonetheless, you won’t hear us arguing with the show’s call to action to avoid becoming a victim. These steps were:

1. Have honest conversations with your family about what your wishes are.

2. Execute a health care power of attorney naming an agent to act for you if there comes a time you cannot manage your own care.

3. Execute a power of attorney for legal and financial decisions (sometimes called a durable power of attorney) naming an agent to act for you if you cannot manage your assets and finances.

4. Name people you trust.

5. Share those documents with friends and family and discuss your plan with them.

6. Plan now, now, now, now, NOW (their words, not mine.)

I would add here that you don’t need to name the same person to the two “agent” roles. Your health care agent and agent under a (durable) power of attorney can be different people.

The Last Week Tonight segment says that “your son” or “a trusted friend” may be a good choice for someone you trust. And indeed we have plenty of clients for whom choices like that work well. But don’t shy away from planning if you don’t feel that you have any family or friends who would do well in these roles. We can help you find professionals who are themselves trustworthy.

So, like they said, plan now, now, now, NOW.

P.S. When I am 86, I want to look like Rita Moreno did on that segment. Let’s be honest, I’d like to look like that now.